Carlos Andres Barrientos v. State

Opinion issued November 4, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-08-00753-CR ——————————— Carlos Andres Barrientos, Appellant V. The State of Texas, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1157995 MEMORANDUM OPINION A jury convicted appellant, Carlos Andres Barrientos, of robbery and assessed punishment at five years’ confinement and a $5,000 fine.[1] In one issue, appellant contends that the trial court erred in admitting, during the punishment phase, text messages received by a cell phone in appellant’s possession and confiscated when he was arrested on an unrelated charge, because these messages constituted inadmissible hearsay. We affirm. Background On September 21, 2006, Marco Urioste, the complainant, drove from College Station to Houston to purchase computer parts from Hyon Sup Shin, whom he had met through online gaming. The complainant met Shin at Memorial City Mall, and the men drove in their separate cars to an apartment complex to view the computer parts. When they arrived at the apartments, appellant, who drove Shin to the complex, introduced himself to the complainant and the three men talked while walking to the apartment. On the way, two unidentified men approached and walked very close to the complainant, “star[ing him] down.” Shin then remembered that he had left his apartment key in appellant’s car, and the complainant realized that he had forgotten his safe, which contained approximately $1,500 in cash, in his car, so the men walked back to the parking lot. The complainant removed his safe from the trunk of his car and noticed the two unidentified men approaching again. After one of the men asked if they had marijuana, and Shin replied that they did not want any trouble, one of the men attempted to punch the complainant. During the ensuing fight, the complainant saw appellant punch him in the neck, so the complainant punched appellant in the face. All four men began punching and kicking the complainant. The complainant testified that someone sprayed him with mace, and, at one point, someone stabbed the complainant in the back. The complainant managed to escape, and, while running away, he looked back and saw the four men picking up his safe and the money that had spilled out during the fight. A jury convicted both Shin and appellant of robbery. At appellant’s punishment hearing, Memorial Village Police Officer W. Truess testified that, on August 1, 2008, which occurred while appellant was released on bail before the robbery trial, he arrested appellant at a house for criminal trespass. During the search incident to arrest, Officer Truess discovered a bag of white powder in appellant’s pants pocket, which later field-tested positive for cocaine. According to Officer Truess, after he discovered the cocaine, appellant told him that he was trying to see a girl who lived at the house and he was “bringing the white powder in his pocket to her” at her request. Officer Truess also stated that appellant asked him to look at the text messages saved on the cell phone he had in his possession at the time of arrest. The State attempted on three separate occasions to have Officer Truess testify regarding the content of appellant’s received text messages, and each time the trial court sustained appellant’s hearsay objections. The trial court also sustained appellant’s objection and instructed the jury to disregard the State’s question of whether Officer Truess was “able to determine if [appellant] was a drug dealer based on [his] contact with [appellant] that night.” During the punishment phase of the trial, appellant called his girlfriend, Shusheila Dashnukh, as a character witness. She testified that she had known appellant for five years before the trial, they were “very very good friends,” and he treats her “very great.” Defense counsel asked Dashnukh whether she knew if appellant used drugs, and she replied that he had and he had previously been enrolled in a drug rehabilitation program. Dashnukh testified that she knew what happens when a defendant does not obey the terms of probation and that she was willing to do “everything I can” to help appellant comply with any probation conditions the trial court imposed. She stated that she believed that appellant could successfully follow probation conditions. On cross-examination, the State questioned Dashnukh about appellant’s drug use and stay in rehab. She confirmed that appellant’s mother had caught him with marijuana in July 2008, while he was on bail for the present offense. Dashnukh agreed with the State that this conduct violated the terms of appellant’s bail. She further testified that she found out about appellant’s arrest for trespass and cocaine possession after it happened, she did not know where appellant got the cocaine he was delivering, and that did she know whether he was selling cocaine to others. The State began to ask whether it would surprise Dashnukh to learn that appellant had received text messages containing drug references, but the trial court sustained appellant’s hearsay objection. The State then asked Dashnukh if she knew whether appellant was a drug dealer, and she testified that he was not. Dashnukh testified that she checked appellant’s cell phone “all the time, even when [appellant] was sleeping” and that appellant never received any text messages referencing drugs. The trial court agreed with the State that the text messages appellant received were now relevant. The State asked whether it would surprise Dashnukh to learn that, on the date Officer Truess arrested appellant, he received a text asking, “[D]o you think I can get an eighth tonight?” The trial court overruled appellant’s objections on hearsay, relevance, improper impeachment, and Texas Rule of Evidence 404(b) grounds. Dashnukh testified that she did not know the sender of the message and it would surprise her to learn that an “eighth” is a drug reference. Dashnukh further agreed that it would surprise her to learn that appellant received a second text that night stating that the sender “want[ed] three ounces of F 15 for a thousand dollars,” and she testified that she had never before seen text messages like those on appellant’s phone. The trial court overruled appellant’s same four objections to the contents of the second text message. Appellant also called his mother, Alejandra McCutchen, as a character witness. She testified that appellant was “a great kid” who never got into trouble, was very obedient, and “always [did] very well.” She also testified about appellant’s previous drug use and stay in rehab. According to McCutchen, appellant had to undergo drug testing while at rehab and he was able to follow the rules of the program. She testified that she knew appellant better than anyone, and she was sure he could follow the rules of probation. On cross-examination, McCutchen agreed that appellant had violated the conditions of his bail when she caught him with marijuana. She testified that she knew some of the details of appellant’s trespass arrest, but it surprised her that he was delivering cocaine to someone. The State asked McCutchen if it would surprise her to know that appellant received “text messages about drugs.” Appellant made the same four objections that he made during Dashnukh’s cross-examination, and the trial court overruled each of these objections. McCutchen responded that she would be surprised and that she did not know anything about appellant’s engaging in drug dealing activities. During closing argument of the punishment phase, the State made four references to appellant’s extraneous offense. The State first mentioned that appellant was dealing cocaine and smoking marijuana while on bail for the charged offense and that this was a “way of life” for him. The State again mentioned that appellant attempted to deliver cocaine to someone while on bail and that he received a text message asking if he had “an eighth.” According to the State, appellant is “clearly a drug dealer.” The State further argued that McCutchen “doesn’t even know about [appellant’s activities], because she’s a mother that loves her kid and is blind to who he really is, which is a robbing drug dealer.” The State then made one final reference to appellant’s delivering cocaine, and commented that, before the State introduced the evidence, the jury “probably didn’t think he was out there doing that,” based upon his appearance and demeanor during the trial. Defense counsel did not object to any of these arguments. The jury assessed appellant’s punishment at five years’ confinement and a $5000 fine. Standard of Review We review a trial court’s decision to admit or exclude evidence during the punishment phase for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A trial court does not abuse its discretion if any evidence supports its decision. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). If the trial court’s decision is correct on any theory of law applicable to the case, we will uphold the decision, even if the court gives the wrong reason for its decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Admission of Evidence Appellant contends that the trial court erred in admitting the text messages received on the cell phone appellant had in his possession when Officer Truess arrested him for trespass and possession, because the messages constituted inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at trial, that a party offers to prove the truth of the matter asserted. Tex. R. Evid. 801(d); Baldree v. State, 248 S.W.3d 224, 230–31 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Hearsay statements are inadmissible, except as provided by statute or other rule. Tex. R. Evid. 802. A statement that is not offered to prove the truth of the matter asserted, but rather is offered for some other reason, does not constitute hearsay. Guidry v. State, 9 S.W.2d 133, 152 (Tex. Crim. App. 1999) (citing Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992), overruled on other grounds, Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001)); Yanez v. State, 199 S.W.3d 293, 307 (Tex. App.—Corpus Christi 2006, pet. ref’d) (“A statement not offered to prove the truth of the matter asserted is not hearsay.”). “Matter asserted” includes any matter explicitly asserted and any matter impliedly asserted by the statement, “if the probative value of the statement as offered flows from the declarant’s belief as to the matter.” Tex. R. Evid. 801(c). The State contends that it did not offer the text messages received by appellant to prove the truth of the matter impliedly asserted—that appellant was a drug dealer—but rather that it offered the text messages to impeach the credibility of Dashnukh and McCutchen, appellant’s two character witnesses. At the punishment phase of a trial, the State and the defendant can offer evidence regarding “any matter the trial court deems relevant to sentencing.” See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2010). Admissible evidence includes, but is not limited to: [T]he prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. Id. A witness who testified to the defendant’s good character can be cross­examined to “test the witness’s awareness of relevant ‘specific instances of conduct.’” Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002); Tex. R. Evid. 405(a) (“In all cases where testimony is admitted under this rule, on cross­examination inquiry is allowable into relevant specific instances of conduct.”). Before the State may cross-examine a character witness, the State must establish that (1) the incidents inquired about are relevant to the character traits at issue and (2) the alleged bad act has a basis in fact. See Wilson, 71 S.W.3d at 350–51 (citing Lancaster v. State, 754 S.W.2d 493, 496 (Tex. App.—Dallas 1988, pet. ref’d)). Generally, “opinion” witnesses are asked “did you know” questions on cross-examination to test the basis for their character assessment. See Wilson, 71 S.W.3d at 350 n.4 (“[T]he witness who testifies to the defendant’s character on the basis of personal knowledge is most effectively challenged by ‘did you know’ questions regarding conduct inconsistent with the traits to which he has offered his opinion . . . .”); Quiroz v. State, 764 S.W.2d 395, 397–99 (Tex. App.—Fort Worth 1989, pet. ref’d) (holding “did you know” questions asked of two of defendant’s character witnesses at punishment phase regarding defendant’s relationship with his daughter and his work were “clearly relevant” to his request for probation when defendant had sworn that he would abide by probation terms, two of which were remaining employed and supporting his dependents). The party cross-examining the character witness may not offer extrinsic evidence to prove that the specific instances actually occurred. Id. at 351. The purpose of the inquiry is to test the character witness and the basis of knowledge for her opinion, and the bad act is only probative for this reason. Id. (citing Fed. R. Evid. 405 cmt.). Appellant’s ability to follow the terms and conditions of community supervision is a relevant character trait when determining a potential punishment. See Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000) (“[T]his Court concluded that ‘[d]etermining what is relevant . . . should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case.” (quoting Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999))); Quiroz, 764 S.W.2d at 399. Although the trial court has considerable discretion in determining the conditions of community supervision, Code of Criminal Procedure article 42.12, section 11 includes, as “basic conditions” of community supervision, the requirement that (1) the defendant commit no offense against the laws of Texas, any other state, or the United States, (2) the defendant avoid “injurious or vicious habits,” and (3) the defendant submit to testing for alcohol and controlled substances. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(1)–(2), (14) (Vernon Supp. 2010). Here, appellant applied for community supervision, and both Dashnukh and McCutchen testified that they believed appellant could successfully complete probation, and they would do everything they could to ensure that appellant followed all the conditions. The testimony of appellant’s two character witnesses that they believed appellant could successfully abide by the conditions of community supervision and Dashnukh’s testimony that appellant was not a drug dealer and had never received text messages referencing drugs entitled the State to cross-examine the witnesses with “did you know” questions regarding the details of appellant’s arrest and his receipt of drug-related text messages. See Wilson, 71 S.W.3d at 350–51; Quiroz, 764 S.W.2d at 399. The text messages received by appellant were relevant evidence of his ability to follow the terms and conditions of community supervision, if granted, including his ability to avoid committing an offense against the law, avoid injurious or vicious habits, and submit to testing for alcohol and controlled substances. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(1)–(2), (14); Mendiola, 21 S.W.3d at 285. This evidence was also proper to aid the jury in determining the appropriate length of his sentence. See Mendiola, 21 S.W.3d at 285; Rogers, 991 S.W.2d at 265. Thus, the trial court’s decision to allow the State to question Dashnukh and McCutchen with the text messages saved on appellant’s phone was not outside the “zone within which reasonable people might disagree.” See Taylor, 268 S.W.3d at 579. We hold, therefore, that the trial court reasonably could have concluded that the State introduced the text messages not for the truth of the matter asserted, but rather to impeach the credibility of Dashnukh and McCutchen and to test their knowledge of appellant and their basis for formulating their opinions regarding his character in order to assist the jury in determining the appropriate punishment.[2] Therefore, the trial court did not abuse its discretion in allowing this questioning. Even if the messages had constituted inadmissible hearsay and the trial court had erred in permitting the questioning, we would hold that the error was harmless. Error in the admission of evidence is non-constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). Tex. R. App. P. 44.2(b); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.). We disregard any non-constitutional error that does not affect a defendant’s substantial rights by having a “substantial and injurious effect or influence in determining the jury’s verdict.” Jabari, 273 S.W.3d at 754 (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)); Tex. R. App. P. 44.2(b). We should not reverse a conviction for non-constitutional error if, after examining the record as a whole, we have “fair assurance that the error did not influence the jury, or had but slight effect.” Jabari, 273 S.W.3d at 754 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). When determining whether the error influenced the jury, we consider the entire record including testimony, physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error, the State’s theory, the defensive theory, and closing arguments. Morales, 32 S.W.3d at 867. Generally, the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged. Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978)). At the punishment stage of the trial, the jury “may consider all of the evidence adduced at the guilt stage.” Green v. State, 682 S.W.2d 271, 289 (Tex. Crim. App. 1984) (citing Russell v. State, 665 S.W.2d 771, 781 (Tex. Crim. App. 1983)). The punishment range for the offense of robbery is either community supervision or two to twenty years’ confinement and a fine of up to $10,000. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3(b), 3g (Vernon Supp. 2010); Tex. Penal Code Ann. §§ 29.02(b) (Vernon 2003), 12.33 (Vernon Supp. 2010). The jury assessed punishment at seven years and four months’ confinement for Shin, and five years’ confinement and a $5,000 fine for appellant. Based on the testimony supporting the guilty verdict, the uncontradicted testimony of Officer Truess regarding appellant’s second arrest, appellant’s acknowledgement that he was delivering cocaine to someone at her request, and the testimony of Dashnukh and McCutchen that appellant possessed marijuana while on bail for the robbery offense, we conclude that the trial court’s admission of the text messages could not have caused more than a slight influence on the jury’s punishment decision. See Jabari, 273 S.W.3d at 754. We therefore hold that the trial court’s admission of the text messages, even if erroneous, would have been harmless error. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Keyes, Higley, and Bland. Do not publish. Tex. R. App. P. 47.2(b). [1] See Tex. Penal Code Ann. § 29.02(a)(1) (Vernon 2003). [2] Appellant points out that the State referred to the text messages several times during closing argument and characterized appellant as a “robbing drug dealer.” To the extent appellant contends that these references indicate that the State offered the text messages for the truth of the matter asserted, we note that, when determining the purpose for which a party offers a statement, “the reviewing court should limit itself to the state of the evidence at the time the trial court was called upon to make a ruling on admissibility. The trial court cannot be asked to speculate on what evidence will be introduced later when determining whether the context supports a hearsay objection.” Head v. State, 4 S.W.3d 258, 262 n.5 (Tex. Crim. App. 1999). We therefore do not consider the State’s closing arguments when determining whether the State offered the text messages for the truth of the matter asserted.